A universal value is stymied by particularistic thinking. It is a matter of experience that in all societies torn by violence – but indeed even in societies at large – persons are unable to think in a reciprocal and equal way under the polar star of the Kantian imperative. On the contrary, they view persons having committed even most heinous crimes under the lens of political considerations of a particularistic nature. Thus, a person is a national hero or a war criminal according to the side where a person stands. The same acts can for the same person be heroic or criminal according to whether they are done by friends or by foe. During the Bosnian war, the communities in the former Yugoslavia reasoned more than largely on such fault lines.… There seems to be an inability of a greater number of persons to attach to the acts and only to the acts, and to condemn them from whichever side they come when they are criminal. — Robert Kolb, Preface
In an exquisitely cogent preface, Robert Kolb, Professor of Public International Law at the Law Faculty of the University of Geneva, distills the particularistic nature of ad hoc or hybrid international(ized) criminal tribunals and courts, which, in part, due to political considerations, are incapable of delivering unqualified/objective local acceptance. This is not necessarily because of the quality of justice – though there is much that can be said about the unevenness in charging and the more-than-the-occasional unimpressive qualifications of some judges – but because, to use an aphorism, acceptance or rejection of the judicial process and results is dependent on whose ox is being gored. Continue reading “Book Review: The Kosovo Specialist Chambers The last resort for justice in Kosovo?”
Don’t underestimate the exhaustion of simply surviving a regime like Democratic Kampuchea. You are physically spent, but mentally and spiritually drained as well. The mind has no time for complications, dual loyalties, cover stories, anything like that. (p. 238)
Lukas Bellwether had a career behind him as an international criminal lawyer. Not such a long career, but long enough to have set himself up with London’s world consultants and experts who get invited to international legal gatherings. Dermott Vann was a senior conference interpreter. This was not the first time that the two friends had met for dinner during a global congress.
Thus, we are introduced to the protagonist and one of the many multi-dimensional characters in this Cambodian crime fiction, which is as multifaceted as Cambodian culture itself. As for the story, here’s a tease: The not-so-extraordinary international criminal lawyer Lukas Bellwether runs into Dermott Vann, a senior interpreter, at a conference in Yangon. Bellwether, who at this stage of his career is more of a conference lecturer (self-importantly fancied as consultant – another one of those canny nuances), is there to make a presentation. Vann is there to interpret. When they occasionally meet at conferences, they customarily indulge in drinks and dinner to catch up. Only this time, Vann unexpectedly goes into convulsions as they stroll the streets of Yangon. Death by poison. Bellwether is off to find the truth. Continue reading “BOOK REVIEW: NO SELL DEAD – A Tale of Cambodia”
In preparing to resume my investigation, if authorisation is granted, I am cognizant of the limited resources available to my Office relative to the scale and nature of crimes within the jurisdiction of the Court that are being or have been committed in various parts of the world. I have therefore decided to focus my Office’s investigations in Afghanistan on crimes allegedly committed by the Taliban and the Islamic State – Khorasan Province (“IS-K”) and to deprioritise other aspects of this investigation. —Karim A. A. Khan QC, 27 September 2021
In a well-crafted public relations message, ICC Prosecutor Karim A. A. Khan QC keeps hope alive for the Afghan victims of Article 5 crimes and atrocities suffered over the past twenty years. What a relief. Hooray!
Our regular assumption was that the odds of success might be shifted decisively as a result of some new technology. Gunpowder to musket, steam turbines to aircraft, missiles to digital networks, all changed the character of warfare, opening up new possibilities while closing off others. But the technology was rarely monopolized or else, if one side enjoyed superiority, adversaries found ways to limit their effects. Even for modern Western forces, technology encouraged a fantasy of a war that was fast, easy, and decisive: yet still they found themselves facing ‘slow, bitter, indecisive war.’
It is unfortunate that the moral theory of war is so often referred to as “just war theory.” This label suggests that just wars are real things that could be the subject of a theory – like politics, decisions, or music. In my view, moral theory should aim to identify and analyze the most serious injustices perpetrated in war. Many of these injustices – such as torture, rape, and enslavement – require little theoretical illumination. In contrast, launching indiscriminate attacks and inflicting disproportionate civilian losses are not, one might say, unjust clearly. What makes an attack “indiscriminate”? What makes civilian losses “disproportionate”? These are the sort of questions that moral theory of war should address. Perhaps a better name for the field would be “unjust war theory.” (p. 2)
I beg to differ.
Just wars are real things and subject to a theory reflected in the applicable laws. The “laws of war,” “law of armed conflict” (LOAC), and “international humanitarian law” (IHL), whichever of the interchangeable labels is your preference (I will use IHL), may at times fall short of the intended purpose, may be imprecise in providing exacting guidance or affording vague margins of discretion to what may seem, semantically, to be malleable standards, and may reflect over-permissiveness of conduct incongruous with moral philosophy’s meaning of justice and the nature of the good life (or the good war). But it is reflective of and in no small measure consistent with the realities faced by those who must apply them in the war theater, as opposed to paradigmatically in a classroom amphitheater. The facilitative aspect of IHL, i.e., that which it aims to achieve – whether viewed from a prohibitive lens or a permissive lens – carries the imprimatur of moral acceptability, however imperfect or unsatisfying. Continue reading “Book Review: LAW AND MORALITY AT WAR “
Indeed, one of my central claims has been that ‘our’ use of law – from policy and national level interpretations of our rights and obligations under international law, to their operationalizations, to rules of engagement – does not generally proffer an alternative to military violence. In fact, the prosecution of US and Israeli warfare especially over the last thirty years suggests that the law is also a medium of violence and that a certain form of judicial violence has played no small part in enabling, legitimizing, and in some cases, even extending military violence. (p. 302)
“Are we clear to engage, yes or no? Come on, make a decision.” In the 2015 film Eye in the Sky, a British colonel (Helen Mirren) asks a military lawyer (Jeff Heffernan), as if it is up to him, to make the ultimate call. If he says no – which is not what the colonel wants to hear – then a righteous kill is sacrificed at the altar of legal technicalities, thus deliberately sanctioning the escape of a terrorist to wreak more terror another day. Of course, when called upon to give such legal advice, it is assumed (often wrongly) that the intelligence is right – that the target is what it is claimed to be. But even so, however accurate aerial strikes may have become, there is no avoiding collateral damage. The question often turns on how much collateral damage is acceptable, and moreover, what if the collateral damage ends up being much higher than predicted. Continue reading “Book Review: THE WAR LAWYERS – The United States, Israel, and Juridical Warfare.”
… man has consciously and unconsciously inflicted irreparable damage to the environment in times of war and peace. — Richard A. Falk, 1973
And will continue to inflict irreparable harm. Environmental degradation and climate change are coming to the forefront of global anxieties with reports of CO2 emissions hitting record levels in 2020 (with a minor dip thanks to COVID), 178 million hectares of forest – an area the size of Libya – being deforested since 1990 (and continuing with impunity), and oil pipelines bursting, leaking into the sea, and causing massive damage to coastal communities (while underneath, 70% of the earth’s coral reefs are at risk due to long-term threats). More desertification, drought, fires, and floods are only expected – at least by the majority of 1.2 million people surveyed worldwide by the United Nations Development Programme who consider that climate change is a global emergency. And this is just peace time pollution. Aside from the obvious environmental damage caused during conflicts, War Junk – weapons and military materials such as landmines, cluster munitions, chemical and radiological weapons – also leaves environmental legacies post-conflict, restricting the use of agricultural land and polluting soil and water sources with explosives and deadly chemicals such as TNT, adamsite, Clark I and Clark II, tabun, and mustard gas, just to name a few.
Rehabilitation is a process rather than a definite result, and it is just one factor that I will consider alongside other factors when deciding on the early release of a convicted person who is eligible to be considered for such relief. – President Agius in Kunarac, para. 45
[A]t the ICTR and the ICTY, rehabilitation has been, on occasion, referred to as an additional sentencing goal, but it has not been defined… There is, however, no settled definition of the exact contours of the concept of rehabilitation in the context of genocide, crimes against humanity, or war crimes. In this regard, I observe that until recently the assessment of rehabilitation focused mostly on whether the convicted person had demonstrated good behaviour in prison. – President Agius in Bralo, para. 37
Having discussed in Part 2 the statutory provisions, rules, and practice directions for early release at the International Criminal Tribunal for the former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), and International Residual Mechanism for Criminal Tribunals (IRMCT), let’s now look at the case law in answering the question I have set out to settle: Has IRMCT President Carmel Agius moved the goalposts? But first, some prefatory remarks.
[W]hile it has been consistently emphasized that the two-thirds point is a mark of eligibility and not an automatic right to release, the Mechanism has inherited a long standing practice of granting requests for early release upon completion of two-thirds of a sentence absent particular circumstances that warrant against it. This practice was initiated by Judge Claude Jorda, during his tenure as President of the ICTY, and continued by subsequent Presidents of the ICTY thereafter.
In Part 1 I promised to settle the question of whether International Residual Mechanism for Criminal Tribunals (IRMCT) President Carmel Agius has moved the goalposts and perhaps even demanded confessions of guilt from convicted persons by adopting additional factors for early release. To answer this question, we must first look at the history of early release at the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the IRMCT, and how the jurisprudence has evolved over the past 20 plus years. In this post I will deal with the practice directions. I will then end the series in the next post by examining a number of cases, which should provide a good basis to draw some conclusions and some best practices. Continue reading “EARLY RELEASE: Has IRMCT President Carmel Agius moved the goalposts? (Part 2)”